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is doing the right thing. it is hard to imagine how you have a healthy democracy under those conditions. i do not think we do have a healthy democracy right now. i do not know how -- i may have some ideas, but i do not know how you turn that around. i think it is a whole different deal to have that as the leader and shipper of the international order then to have it as a 19th century country that deny have much activity abroad. we have a profound problem that i do not see signs yet of our being able to find our way out of. .
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the most important point about the 80 s and federal common law, even if it were under section 1331, is that it is and application of u.s. substantive and remedial lot. and the offenses were telling the other country they have to entertain private civil litigation. and there is a difference -- >> you're right about that. what about bradford? >> bradford is the best thing
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the petitioners have and the founding iraq. he could have been speaking about the high seas. >> if you read it, it looks as if what he was up said about or what britain was upset about was an american. >> it was americans, but if properly read, the hostilities of which he spoke was the high seas part of the conduct. it was an american who piloted the french fleet 60 miles from the a list -- illes de los to the sierra leone river. >> before your time runs out, there would be no basis under the alien tort statute. but assume for a moment that those two cases -- that we accept them -- to accept them. is there anything different about your case? >> yes, your honor.
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there are many differences between us and filartiga. this is a case in which there is a class action against a corporation. if he did not agree with us and the lack of extraterritorial application, we still maintain that the ats does not apply to corporations. second, there is an allegation here of aiding and abetting a foreign government. it was unclear whether the paraguayan was acting within or without the state's authority, but he was later deported, so we do not know t answer. here the offense is magnified because the allegation is that in english and a dutch company aided and abetted the nigerian government. that is where the offense to the principle against international friction -- international friction is at its highest. if you want to adopt our position in full, at a minimum we think he should hold that the prisons and applies to foreign
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keep cases involving aiding and abetting a foreign government. but we do not think he should do that. we respectfully submit the better approach is to apply the presumption as a categorial matter. >> why was there not an aiding and abetting? i think it was pretty clear. he was probably working for the government, which is even worse. i am interested in the justice ginsburg pose a question. just assume we think the second circuit was right, is there any way in which we can use the principle of extraterritoriality to roll in your favor? what we think there is, justice kennedy. we think the principle of extraterritoriality is essentially a democracy for some device to send these questions back to congress. if we send it back to congress -- >> well, we crossed that -- we crossed a bridge already, did we not, in sosa?
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we're making this lot up ourselves, right? the >> you are making this up yourselves. that is why there is more reason to apply the presumption against application and foreign companies. >> but you're asking us to overturn our president. >> you're basically saying they are all wrong. >> we are not, your honor. it did not address the question we have before the court today. >> how can you say that? maybe the fact and not, but certainly the reasoning of the case addressed that issue very directly and basically said it does. and it talked about how you limit it. that what -- that is what ssoa did. >> in the intervening period, congress did as it is a proper to the area of apply a lot different conduct, pass a specific statute that applies exactly to the conduct. that should inform your decision today. you do not need judgment ought to address the situation.
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you do not need to overrule sosa because sosa did not address the extraterritoriality argument we make today. it did not get to the concerns about friction within foreign countries. >> i am going to read something which talks all about the role that it adopts and it says, this is generally consistent with the reasoning of many of the courts and judges who face the issue before it reached the court. and then it quotes, for purposes of civil liability, the torture has become like the pirates and slave trader before him, an enemy of all mankind. so we get a stamp of approval to the understanding that there were certain categories of offenders who were today's pirates.
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if the facts of the nations of the world agree on norns does not mean the nations of the world agree on remedies. what the ats and federal, as interpreted it do is protect the u.s. civil cause of action with u.s. rules, punitive damages, no attorney the shifting, contingent fee and punitive damages. i should not be done by congress. >> thank you. >> mr. chief justice, and may it please the court, the alien tort statute cannot afford a cause of action to address the extraterritorial conduct of a foreign corporation when the allegation is that the defendants aided -- aided and abetted a foreign sovereign.
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in this category of cases, there is an any meaningful connection to the united states. >> is that you're some coral? is that how you want us to rule? but there could never be aiding and abetting on behalf of a corporation? is that your simple answer to this case? >> it is a narrower statement than that. there should not be a cause of action to address the extraterritorial conduct of a foreign corporation that is alleged to have aided and abetted the acts of the foreign sovereign. >> what about in your -- you do say in your birth you think that it is within the alien tort statute. -- your brief that you think it is within the alien tort statute. you do not adopt a theory that many of the -- there has to be a connection, some access to the united states. how about marcos, is that ok?
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>> well, we think there is a nexus to the united states. the actual perpetrator was -- >> you do not authorize a nexus. he did not offer us the reason why it was ok. >> is, i think our reasons for why it was ok is a was the actual perpetrator, an aide and a better. the actual perpetrator was resident in the united states. when congress enacted the tvpa, that is what congress look to as the salient features. >> what else? you do not mention marcos. is marcos in your view a proper exercise? >> i think florida is the paradigm,-- filartiga is the paradigm. >> that is an imposition for the
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state department, is it not? and for the united states government. why should we listen to you rather than the solicitors general who took the opposite position and the position taken by respondents here in other cases not only address several cases of appeal but here? >> justice scalia, in it is like this one and cases under the alien tort statute the united states has multiple interests. have foreign religion interest in avoiding -- interest in avoiding it added six companies for liability abroad. also have interests in ensuring that our nation foreign commitments to the role of law and human rights are not eroded. >> i understand that. >> it is my responsibility to balance the competing interests and make a judgment on what the position the united states should be consistent with -- >> it was with their
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predecessors as well and they took a different position. why should we defer to the views of the current administration? >> we think there are persuasive, your honor. your successors may adopt a different view. is. the whatever difference to our entitled to -- your predecessors took a different position. >> let me be clear. in this is our position is that the court ought to not recognize the cause of action. >> suppose the defendant in this case for a u.s. corporation, that the case or otherwise identical. >> in that case, it would be comparable. the risk of reciprocal exposure
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to american companies which also would exist, the difference between that case in this case would be there is a much more substantial connection to the united states because it is an american company. the question in the kids would be whether the connection provided sufficient justification -- subject in the united states company to these norms to avoid undermining those norms, the have not taken a position on that question until this case because we think the court ought to proceed incrementally here. it involves a foreign corporation in which there is not any connection to the united states at all. it is our -- >> are disavowing any form of necessity view of the atf? you are disavow what other countries do or say with respect to citizens to aliens who are
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attacked? >> argued about that is that the key determinant here and the reason there ought not to be a cause of action here is the any meaningful connection to the united states. >> i asked you a question directly. are you for going any former -- foreign necessity to the role the just announced? >> we do not think the question of the availability of form or not availability of a form is sufficient to override the access of opinion connection to the united states. i do not understand how you would decide. what would it depend on? i think it would depend on the wing of the strength of the
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united states and applying these norms and order to avoid undermining. >> we have corrected get out from under our practice law at into the sovereign immunity area asking the state department. this is good, this is bad. we abandon all that. why should we walk back into it here? do you intent to have us make these foreign policy decisions? >> what we are advocating here is that the court can make categorical judgments, not on the case by case factual judgment. we think there is more than one category between a situation
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like this one in which there is no connection to the united states are a situation like the one justice a leader raised about an american corporation. >> the use of the state department to deserve that. >> are you talking about a nexus test? that is what it sounds like to me. whether an act nexus -- what are you talking about? >> we are talking about something different. the question is whether to recognize a federal, ma cause of action. i think it depends -- >> either it exists or it does not. >> there are interests that had against recognizing causes of action. that is what he said. >> i am having trouble with
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this. without question, papyruses, attacks on a mass -- piracy, attacks on ambassadors, we know that those for internal norms in 1789. you seem to be suggesting that if a frenchman attacks and english ambassador in switzerland, that case would never be heard in the united states because there is no nexus to the united states, is that correct? >> well, if nobody ever came to the united states. >> it is not -- the connection is not an on \ off switch. >> why is the presence not allowed to enter the united states a connection? >> well, if it is an individual
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perpetrator we think that it is because of the direct perpetrator. >> i think torture has to be -- >> torture is done by hiring torture, inc. ok? he heard the question. i need an answer to the specific hypothetical. everything is the same except the torture is carried out by torture, and ink. by actual question is about aiding and abetting. the first part is they do it directly. can they bring it or not, in your view? >> they are the direct my letter of a norm then yes, they can. >> if it is aiding and abetting? >> if it is a foreign corporation and a occurred entirely in a foreign country. but what is the difference between that? is it like the criminal law
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difference of accessory versus principle or what? >> the difference is that while you would have a comparable -- you would have a risk of friction and subjecting ax -- had directors -- if it is an entirely foreign corporation with no connection of the united states, our position is the answer to that is no. >> you have eight minutes remaining. >> i would like to make three points. first, on the bradford opinion, i think if you read the diplomatic -- the diplomatic materials that we place before the court, it is up till the clear that what the british were concerned about is pillaging and pondering on land in the sierra
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leone colony. there were seeking redress for those things, for destroying libraries, for destroying freetown, not just about things that happen on the high seas and not just about things that happened in territorial waters, it is clear that that is true. obviously you have those materials. you can read it. attorney general bradford said there was no doubt that there was an fet s action. >> there is also a u.s. perpetrator. >> well, that is true. but with respect to the presumption against extraterritoriality, it would not matter if it was a u.s. perpetrator or not. it shows exactly what the presumption can apply because it would undermine the very purposes of the statute in the best available evidence that we have a about what it meant in the era. i would like to give a hypothetical that i think reveals why the u.s. government position should not be accepted. suppose there is an iranian corporation as a relief supplies poison gas to the current syrian
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regime in order to kill tens of thousands of kurdish citizens. and suppose after the assad regime is overthrown, the documents revealing the poison gas transfer to the syrian regime was made public. that iranian corporation does business and enter the united states, asylum seekers who were driven out by the poison gas attacks are in the united states, maybe listing -- may be living in these and communities as the plaintiffs in our case. would it be the case of the alien tort statute should not apply to a claim of aiding and abetting the regime and of murdering tens of thousands of its people? it is the modern-day example of i.g. farben. is it the case that it would be exempt from the alien tort statute? there is a clear, well established doctrine of aiding and abetting in the international law. the lower courts of uniformly rejected the arguments that have been made by respondents center
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of this case. i would say that the sosa framework should be given a chance to work. the courts dealt with these issues eight years ago. it is a paradigm test based on many of the concerns that have been expressed here. there are alternative doctrines that can be applied to deal with the concerns. political question, act of state, international comity, form on convenience, personal jurisdiction, those of not really been litigated. whether they have been waived or not is something that the lower courts can deal with. >> i have in mind particularly the goodyear tire case. is there jurisdiction in this case or is -- or in the case of your hypothetical? >> one of the problems that we would have an answering that question is that there is no record about the contacts between these defendants and --
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and the jurisdiction in 2002. the case where it was litigated was dealt on a factual record that one back to 1996 and 1997. there is the record here about personal jurisdiction because it has not been asserted. now, of the defendants have not in fact waived personal jurisdiction, then presumably the lower courts would apply the tests that this court has established or in the 2011 decisions. the salmon be true of four non convenience or any other defenses. -- the same would be true for or any atonveniens the other cases. the court should not accept the categorical position asserted by either of the respondents, which are the broadest categorical
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positions even rejected by the government, or the government's modify categorical position. those kind of issues can be dealt with and well established doctrine's where lower courts have a body of jurisprudence but they can use to do this. the alien tort statute as was applied to human rights cases is part of a trend in the world today. the trend of the turn of the world today is towards universal justice for people that -- and corporations that violate this kind of norms. that is the trend. the united states has been the leader of the inter that. our government has proclaimed our leadership position to you and bodies and around the world. >> the united kingdom and the netherlands did not think so. >> well, the united kingdom and the netherlands have obviously asserted this position. 21 days after the argument in february, a dutch court gave
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damages to a palestinian doctor for wrongful imprisonment and torture that occurred in libya against two libyan defendants that were not even present and enter the courtroom. >> it may have been wrong. clocks it may have been just actually it seems perfectly consistent with dutch law, it is consistent with the exercise of universal jurisdiction -- >> i would rather listen to the dutch government and one dutch judge. >> the nigerian government does not have a position on this case any longer. the united states has never asked for this case to be dismissed on foreign-policy grounds. the united kingdom and dutch government have never asked for this case to be invalidated on foreign-policy grounds. they have stated their position about what they think the alien tort statute should mean. if you look at the european union brief of which the united kingdom and the dutch are members, the european union says
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that there is no issue of yours -- universal jurisdiction. there is no issue about civil jurisdiction of falls within universal jurisdiction. their only argument is that if you accept that you should accept international opposition and exhaustion of local remedies. >> is that not really the way to reconcile the dutch possessions? they think they have a fair forum. when the judges were faced with a case arising from libya, they thought there was no fair form there. that is the difference. in one case there was exhaustion and the other case there was not. >> i think that is probably what the basis of the dutch position. our position is the framework of this court as tax -- established to take the pirates of the 18th century and deal with the alien tort statute with the porters and those who commit genocide until the 21st century was correct. that does not need a radical
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revaluation as suggested by the response and the united states. if there are no further questions -- >> thank you, counsel. the case is limited. >> see the only vice presidential debate thursday night live on c-span, c-span radio, and c-spc-span.org. next we will show you the vice presidential debate between george bush. your calls and comments on "washington journal." after that, "newsmakers." >> i am not looking for a $5 trillion tax cut. i said i will not put implicit tax cut that adds to the deficit. no economist can say makes -- mitt romney's plan calls -- i will not reduce the share paid
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for by high-income individuals it. i know that you and your running mate keep saying that and i know it is a popular thing to say, but it is not the case. i have five boys. i in used to people saying something that is not always true but keep on repeating it and hoping that will be leaving, that is not the case. i will not reduce the taxes paid by high-income americans. number three, i will not under any circumstances raise taxes on middle income families. >> for 80 months to have been running on this tax plan. 5 -- 18 months you have been running on this tax plan. now you're big bold idea is to never mind. if you are lowering the rates the way you describe, then it is not possible to come up with enough deductions and loopholes that only affect high-income individuals to avoid either raising the deficit or burdening the middle class. it is math.
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it is arithmetic. >> today, what's the entire first debate between president obama and mitt romney from the university of denver at noon eastern on c-span. today an interview with former presidential candidate ross perot by richard wolf. he talks about the state of the economy, the deficit and the debt and how it has changed since his campaign. here is a portion of the interview. >> if i had three wishes, strong, moral, ethical base. i had that would was growing up and enter the depression. a strong family unit in every home. now the divorce rate is 50%. that is destabilizing. when i grew up and enter the depression, we had the finest public schools -- in the
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depression, we had the finest public schools. our public schools are at the bottom of the industrialized world. the great state of texas -- that is the country. in the great state of texas where i went to public schools and had a incredible education, it is either 47 or 49 in 50 states. that is our responsibility. we can correct that. but the problems we face now, they are so fundamental about what we must do now. it cannot pass that off to the house or senate of the federal government. we have to get the ball. >> richard wolf talks with ross perot today at 1:35 eastern on c-span.
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>> almost 20 years ago we broadcast one of the most controversial stories and our 44 years on the air. it was called "yes, but is it art?" i was accused of somebody lacking the nature of contemporary art. it works that i question the worth hundreds of thousands of dollars are now worth hundreds of millions of dollars. >> what made everybody so mad 20 years ago? >> i discovered something that i had absolutely could barely believe it. when you question somebody's taste of in art, it is more personal than their politics, religion, sexual preference. it is something that goes to the

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News and Public Affairs
CSPAN October 7, 2012 3:00am-5:30am EDT

News/Business. Highlights from the week.

TOPIC FREQUENCY United States 20, U.s. 7, Us 3, Sosa 3, United Kingdom 3, Texas 2, Ross Perot 2, Libya 2, Richard Wolf 2, Sierra Leone 2, United 2, Filartiga 2, Papyruses 1, Freetown 1, Marcos 1, Florida 1, The United Kingdom 1, George Bush 1, Mankind 1, Mitt Romney 1
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